UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4833

JACKIE ROBINSON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

C. Weston Houck, Chief District Judge.

(CR-96-32)

Submitted: September 30, 1997

Decided: November 5, 1997

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William F. Nettles, IV, Assistant Federal Public Defender, Florence,

South Carolina, for Appellant. Alfred William Walker Bethea, Assistant United States Attorney, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jackie Robinson, Jr., pled guilty to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (1994), and was

sentenced to 94 months imprisonment. At the sentencing hearing,

Robinson's counsel moved for a continuance so that Robinson could

file a motion to withdraw his guilty plea. The court subsequently considered and denied the motion to withdraw, treating it as one filed

before sentencing.

On appeal, Robinson's attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), addressing whether the

district court conducted a proper plea hearing under Fed. R. Crim. P.

11, and whether the court erred by denying Robinson's motion to

withdraw his plea. Counsel asserts that there are no meritorious

grounds for appeal. Robinson was informed of his right to file a pro

se supplemental brief, and has filed a brief raising additional arguments relating to his Rule 11 hearing and the court's denial of his

motion to withdraw his plea.

We accord great deference to the trial court's conduction of the

Rule 11 hearing, and evaluate Rule 11 violations under the harmless

error standard. See United States v. DeFusco, 949 F.2d 114, 116, 117

(4th Cir. 1991). We may vacate a conviction resulting from a guilty

plea only if the trial court's violation of Rule 11 affected a defendant's substantial rights. Id. at 117. The court asks "whether the

defendant's knowledge and comprehension of the full and correct

information would have been likely to affect his willingness to plead

guilty." United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)

(quoting United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en

banc)). In this case, the court discussed the nature and elements of the

charges, ensured that Robinson had consulted with and was satisfied

with counsel, understood the rights he forfeited by virtue of his plea,

and entered the plea freely and voluntarily. The court also ascertained

that there was a factual basis for the plea.

Robinson correctly argues in his informal brief, however, that the

court failed to personally inform him of the mandatory minimum sen-

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tence (of five years) he faced for his conviction under § 841(a), and

also erroneously told him that he faced a maximum supervised release

term of four years but then sentenced him to five years supervised

release. We have specifically held that Rule 11(c)(1) requires the district court to inform the defendant of any mandatory minimum sentence required by statute. See Goins, 51 F.3d at 402.

On the other hand, "[f]ailure to inform a defendant about applicable

mandatory minimums can be, but is not necessarily, a serious oversight. The inquiry is fact bound." United States v. Padilla, 23 F.3d

1220, 1222 (7th Cir. 1994). As we have alluded to, the ultimate question is whether the error was harmful in the sense that it likely actually affected the decision to plead guilty. One example where the

failure to inform may be harmless is where the record reflects that the

defendant was actually aware of the information that the court failed

to impart. See Goins, 51 F.3d at 402-03. That is the situation in this

case, as the record reflects that during the Rule 11 hearing, the Assistant United States Attorney stated the mandatory minimum sentence

Robinson faced in response to the court's inquiry regarding Robinson's sentencing range. When the court reiterated this information, it

omitted reference to the mandatory minimum, but Robinson was

nonetheless actually alerted to the existence of a five-year minimum

sentence.

Moreover, the sequence of events reflected by the record in this

case suggests that neither error committed at the Rule 11 hearing

likely affected Robinson's decision to plead guilty. The presentence

report was prepared in June 1996. The report explicitly discusses the

applicable mandatory minimum sentence, and the maximum term of

supervised release. Robinson filed his motion to withdraw his guilty

plea on August 29, 1996. As grounds for the motion, Robinson

asserted that he felt pressured to plead guilty because a co-defendant's

attorney advised him that all the co-defendants should either plead

guilty or go to trial together, and all four co-defendants were pleading

guilty. He also alleged that a co-defendant's attorney told him that he

had no chance of winning at trial because he was black. Despite being

alerted to the applicable sentence ranges over two months earlier,

Robinson did not allege in his motion that he had been misled about

his possible sentence, or that his misconception had anything to do

with his decision to plead guilty. In fact, even on appeal, Robinson

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does not allege that this error affected his decision to plead guilty, but

merely asserts that the error automatically invalidates his plea.

Accordingly, we find the errors committed by the district court in the

conduction of the Rule 11 hearing to be harmless.

Robinson next asserts that the district court erred by denying his

motion to withdraw his guilty plea. Under Fed. R. Crim. P. 32(d), a

court may grant a motion for withdrawal of a guilty plea made before

sentencing if the defendant presents a "fair and just reason" for withdrawal. A fair and just reason is one which brings into question the

validity of his plea. See United States v. Hyde , ___ U.S. ___, 1997

WL 273691 (U.S. May 27, 1997) (No. 96-667). The district court

denied Robinson's motion after explicitly considering the factors we

found to be most relevant to the "fair and just reason" test in United

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

First, the court found the record devoid of evidence that Robinson's plea was not entered knowingly or voluntarily. We disagree

with Robinson's assertion that the fact that during the plea hearing

one co-defendant requested more time to think about his decision, and

to speak with his co-defendants, should have put the court on notice

that the pleas might not be voluntary, particularly since the court

granted the requested time, and all defendants subsequently pled

guilty. Next, while Robinson asserted that he was not guilty in his

motion, he provided no support for his claim. Hence, there is no merit

to Robinson's contention on appeal that the court should have ordered

an evidentiary hearing to explore the question of actual innocence.

The court also noted that Robinson filed his motion nearly three

months after entering his plea, and that he received close assistance

of counsel. Robinson acknowledged his satisfaction with counsel at

the plea hearing and in his motion. As the court properly found that

each of these factors weighed against granting the motion, we find

that it did not abuse its discretion by denying it. See United States v.

Sparks, 67 F.3d 1145, 1150, 1154 (4th Cir. 1995) (stating standard of

review and explaining relative importance of various Moore factors).

In accordance with the requirements of Anders , we have examined

the entire record and find no meritorious issues for appeal. Accordingly, we affirm Robinson's conviction and sentence. This court

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requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel's motion must state

that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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